Chapter 895

895.03 Annotation A decedent must have had an actionable claim for damages at the time of death for a wrongful death cause of action to exist. If the statute of limitations would have barred the decedent from bringing a medical malpractice action, had the decedent lived, a wrongful death action based on the alleged malpractice is also barred. Miller v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992).

895.03 Annotation This section does not provide when a claim for damages due to wrongful death accrues, or when it must be brought, or when it will be lost. A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based—the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

895.03 Annotation This section says nothing about who can bring a wrongful death claim, or who the defendants can be. The statute only permits the representative of a deceased to maintain an action the deceased could have maintained had the deceased lived. It did not prevent the father of a fetus killed in a car accident from suing the insurer of the fetus’s mother. Tesar v. Anderson, 2010 WI App 116, 329 Wis. 2d 240, 789 N.W.2d 351, 09-1993.

895.03 Annotation The cause of action authorized under this section applies only to deaths caused in Wisconsin. However, Wisconsin courts must allow plaintiffs to sue under another interested state’s law when no Wisconsin law provides for the action and Wisconsin has no public policy against recovery. When there is no cause of action under this section and another state’s wrongful death statute applies, the terms and limitations in s. 895.04 do not apply. Waranka v. Wadena Insurance Co., 2014 WI 28, 353 Wis. 2d 619, 847 N.W.2d 324, 12-0320.

895.03 Annotation The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58, 362 Wis. 2d 668, 866 N.W.2d 602, 12-1493.

895.031 895.031 Recovery from estate of wrongdoer. If the death of a person is caused by a wrongful act or omission committed in this state that, if death had not ensued, would have entitled the injured party to maintain an action and recover damages and the wrongdoer dies prior to the time of the death of the injured person, the wrongdoer shall be liable for damages notwithstanding either death. Any right of action against a deceased wrongdoer under this section shall be enforced by bringing an action against the deceased wrongdoer’s personal representative.

895.031 History History: 1993 a. 486; 2001 a. 102.

895.035 895.035 Parental liability for acts of minor child.

895.035(1) (1) 

895.035(1)(a) (a) In this section:

895.035(1)(a)1. 1. “Custody” means either legal custody of a child under a court order under s. 767.225 or 767.41, custody of a child under a stipulation under s. 767.34 or actual physical custody of a child. “Custody” does not include legal custody, as defined under s. 48.02 (12), by an agency or a person other than a child’s birth or adoptive parent.

895.035(1)(a)2. 2. “Governing body of a private school” has the meaning given in s. 115.001 (3d).

895.035(1)(b) (b) In determining which parent has custody of a child for purposes of this section, the court shall consider which parent had responsibility for caring for and supervising the child at the time the act that caused the injury, damage or loss occurred.

895.035(2) (2) 

895.035(2)(a) (a) The parent or parents with custody of a minor child, in any circumstances where he, she, or they may not be liable under the common law, are liable for damages to property, for the cost of repairing or replacing property or removing the marking, drawing, writing, or etching from property regarding a violation under s. 943.017, for the value of unrecovered stolen property, or for personal injury attributable to a willful, malicious, or wanton act of the child.

895.035(2)(b) (b)

895.035(2)(b)1. 1. The parent or parents with custody of their minor child are jointly and severally liable with the child for the damages imposed under s. 943.51 for their child’s violation of s. 943.50.

895.035(2)(b)2. 2. If a parent is jointly and severally liable under this paragraph and has physical placement of the child, the parent’s liability is limited to that percentage representing the time that the child actually spends with that parent.

895.035(2)(b)3. 3. Notwithstanding sub. (1), a parent does not have custody of a child for purposes of this paragraph if at the time of the violation the child has been freed from the care, custody, and control of the parent through marriage or emancipation or if at the time of the violation the parent does not reasonably have the ability to exercise supervision and control of the child because the child is uncontrollable or because another person has interfered with that parent’s exercise of supervision and control.

895.035(2g) (2g) The parent or parents with custody of a minor child are liable for the cost of the repair or replacement of, or the removal of the etching, marking, drawing or writing from, property damaged as the result of a violation of an ordinance that prohibits intentional etching or marking, drawing or writing with paint, ink or other substance on the physical property of another without the other’s consent.

895.035(2m) (2m) 

895.035(2m)(a) (a) If a juvenile or a parent with custody of a juvenile fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4), 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the juvenile or parent will not pay restitution as ordered or agreed to, the victim, the victim’s insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the victim or the victim’s insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim’s insurer, or both, from commencing another action seeking compensation from the juvenile or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim’s insurer.

895.035(2m)(b) (b) If a juvenile or a parent with custody of a juvenile fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court, if a juvenile or a parent with custody of a juvenile fails to pay costs as ordered by the court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court, if a juvenile fails to pay a surcharge as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a court of criminal jurisdiction or if it appears likely that the juvenile or the parent will not pay the forfeiture or surcharge as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the juvenile or the law enforcement agency that issued the citation to the juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture, surcharge or costs unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture, surcharge or costs is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.

895.035(2m)(bm) (bm)

895.035(2m)(bm)1. 1. Before issuing an order under par. (a) or (b), the court assigned to exercise jurisdiction under chs. 48 and 938 shall give the juvenile and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the juvenile and the parent an opportunity to present evidence as to the amount of the restitution, forfeiture or surcharge unpaid, but not as to the amount of the restitution, forfeiture or surcharge originally ordered. The court shall also give the juvenile and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution, forfeiture or surcharge and the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge. In considering the ability of the juvenile or the parent to pay the restitution, forfeiture or surcharge, the court may consider the assets, as well as the income, of the juvenile or the parent and may consider the future ability of the juvenile or parent to pay the restitution, forfeiture or surcharge within the time specified in s. 893.40.

895.035(2m)(bm)2. 2. In proceedings under this subsection, the court assigned to exercise jurisdiction under chs. 48 and 938 may take judicial notice of any deferred prosecution agreement, consent decree, dispositional order, sentence, extension of a consent decree, dispositional order or sentence or any other finding or order in the records of the juvenile maintained by that court or the municipal court.

895.035(2m)(bm)3. 3. In proceedings under this subsection, the juvenile and the parent may retain counsel of their own choosing at their own expense, but a juvenile or a parent has no right to be represented by appointed counsel in a proceeding under this subsection.

895.035(2m)(c) (c) The court assigned to exercise jurisdiction under chs. 48 and 938 may order that the juvenile perform community service work for a public agency or nonprofit charitable organization that is designated by the court in lieu of making restitution or paying the forfeiture or surcharge. If the parent agrees to perform community service work in lieu of making restitution or paying the forfeiture or surcharge, the court may order that the parent perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the juvenile or parent to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the restitution, forfeiture, or surcharge by the minimum wage established under s. 104.035 (1). The court shall ensure that the juvenile or parent is provided with a written statement of the terms of the community service order and that the community service order is monitored.

895.035(3) (3) An adjudication under s. 938.183 or 938.34 that the juvenile violated a civil law or ordinance, is delinquent or is in need of protection and services under s. 938.13 (12), based on proof that the juvenile committed the act, subject to its admissibility under s. 904.10, shall, in an action under sub. (1), stop a juvenile’s parent or parents from denying that the juvenile committed the act that resulted in the injury, damage or loss.

895.035(4) (4) Except for recovery under sub. (4a) or for retail theft under s. 943.51, the maximum recovery under this section from any parent or parents may not exceed $5,000 for damages resulting from any one act of a juvenile in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court. If 2 or more juveniles in the custody of the same parent or parents commit the same act the total recovery under this section may not exceed $5,000, in addition to taxable costs and disbursements. The maximum recovery from any parent or parents for retail theft by their minor child is established under s. 943.51.

895.035(4a) (4a) 

895.035(4a)(a) (a) The maximum recovery under this section by a school board or a governing body of a private school from any parent or parents with custody of a minor child may not exceed $20,000 for damages resulting from any one act of the minor child in addition to taxable costs and disbursements and reasonable attorney fees, as determined by the court, for damages caused to the school board or the governing body of a private school by any of the following actions of the minor child:

895.035(4a)(a)1. 1. An act or threat that endangers the property, health or safety of persons at the school or under the supervision of a school authority or that damages the property of a school board or the governing body of a private school and that results in a substantial disruption of a school day or a school activity.

895.035(4a)(a)2. 2. An act resulting in a violation of s. 943.01, 943.02, 943.03, 943.05, 943.06 or 947.015.

895.035(4a)(b) (b) In addition to other recoverable damages, damages under par. (a) may include the cost to the school board or the governing body of a private school in loss of instructional time directly resulting from the action of the minor child under par. (a).

895.035(4a)(c) (c) If 2 or more minor children in the custody of the same parent or parents are involved in the same action under par. (a), the total recovery may not exceed $20,000, in addition to taxable costs, disbursements and reasonable attorney fees, as determined by the court.

895.035(4a)(d) (d) If an insurance policy does not explicitly provide coverage for actions under par. (a), the issuer of that policy is not liable for the damages resulting from those actions.

895.035(5) (5) This section does not limit the amount of damages recoverable by an action against a child or children except that any amount so recovered shall be reduced and apportioned by the amount received from the parent or parents under this section.

895.035(6) (6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.45 (1r) (a). Any recovery of a forfeiture under this section shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8), 938.343 (2) or 938.45 (1r) (b). Any recovery of a surcharge under this section shall be reduced by the amount recovered as a surcharge under s. 938.34 (8d).

895.035(7) (7) This section does not affect or limit any liability of a parent under s. 167.10 (7) or 343.15 (2).

895.035 History History: 1985 a. 311; 1987 a. 27; 1993 a. 71; 1995 a. 24, 77, 262, 352; 1997 a. 27, 35, 205, 239, 252; 1999 a. 9, 32; 2003 a. 138; 2005 a. 443 s. 265; 2013 a. 237; 2015 a. 55.

895.035 Annotation This section imposes absolute liability on parents once all elements have been established. Accordingly, the defense of contributory negligence is unavailable to parents. First Bank Southeast, N.A. v. Bentkowski, 138 Wis. 2d 283, 405 N.W.2d 764 (Ct. App. 1987).

895.035 Annotation An “act” under sub. (4) is a complete course of conduct. What distinguishes a single act from multiple acts is whether: 1) a sufficient period of time separates the conduct; 2) the conduct occurred at separate locations; and 3) there is a distinct difference in the nature of the conduct. In cases of improper sexual contact, the jury need not make an individual damage determination for each act. N.E.M. v. Strigel, 208 Wis. 2d 1, 559 N.W.2d 256 (1997), 95-0755.

895.035 Annotation Under s. 938.34 (5) (a), assessing the damages to the victim is the first step in the court’s determination of restitution, and determining the amount the juvenile is capable of paying is the second. Whichever amount is lower is the maximum amount that the court may order as restitution. Under sub. (2m) (a), courts are without authority to order that the “total damage” figure be converted to a civil judgment. Sub. (2m) (a) allows only for the conversion of restitution. State v. Anthony D., 2006 WI App 218, 296 Wis. 2d 771, 723 N.W.2d 775, 05-2644.

895.035 Annotation Torts: The Constitutional Validity of Parental Liability Statutes. O’Connor. 55 MLR 584 (1972).

895.035 Note NOTE: See also the notes to s. 343.15, for parental responsibility for minor drivers.

895.037 895.037 Abortions on or for a minor without parental consent or judicial waiver.

895.037(1) (1) Definitions. In this section:

895.037(1)(a) (a) “Abortion” has the meaning given in s. 48.375 (2) (a).

895.037(1)(c) (c) “Emancipated minor” has the meaning given in s. 48.375 (2) (e).

895.037(2) (2) Penalties.

895.037(2)(a) (a) Any person who, in violation of s. 48.375 (4), intentionally performs or induces an abortion on or for a minor whom the person knows or has reason to know is not an emancipated minor may be required to forfeit not more than $10,000.

895.037(2)(b) (b) Any person who intentionally violates s. 48.375 (7) (e) or 809.105 (12) may be required to forfeit not more than $10,000.

895.037(3) (3) Civil remedies.

895.037(3)(a) (a) A person who intentionally violates s. 48.375 (4) is liable to the minor on or for whom the abortion was performed or induced and to the minor’s parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion including, but not limited to, damages for personal injury and emotional and psychological distress.

895.037(3)(b) (b) If a person who has been awarded damages under par. (a) proves by clear and convincing evidence that the violation of s. 48.375 (4) was willful, wanton or reckless, that person shall also be entitled to punitive damages.

895.037(3)(c) (c) A conviction under sub. (2) (a) is not a condition precedent to bringing an action, obtaining a judgment or collecting that judgment under this subsection.

895.037(3)(d) (d) A person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action, notwithstanding s. 814.04 (1).

895.037(3)(e) (e) A contract is not a defense to an action under this subsection.

895.037(3)(f) (f) Nothing in this subsection limits the common law rights of parents, guardians, legal custodians and minors.

895.037(4) (4) Confidentiality. The identity of a minor who is the subject of an action under this section and the identity of the minor’s parents, guardian and legal custodian shall be kept confidential and may not be disclosed, except to the court, the parties, their counsel, witnesses and other persons approved by the court. All papers filed in and all records of a court relating to an action under this section shall identify the minor as “Jane Doe” and shall identify her parents, guardian and legal custodian by initials only. All hearings relating to an action under this section shall be held in chambers unless the minor demands a hearing in open court and her parents, guardian or legal custodian do not object. If a public hearing is not held, only the parties, their counsel, witnesses and other persons requested by the court, or requested by a party and approved by the court, may be present.

895.037 History History: 1991 a. 263.

895.037 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

895.038 895.038 Partial-birth abortions; liability.

895.038(1) (1) In this section:

895.038(1)(a) (a) “Child” has the meaning given in s. 940.16 (1) (a).

895.038(1)(b) (b) “Partial-birth abortion” has the meaning given in s. 940.16 (1) (b).

895.038(2) (2) 

895.038(2)(a) (a) Except as provided in par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:

895.038(2)(a)1. 1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.

895.038(2)(a)2. 2. The father of the child aborted by the partial-birth abortion.

895.038(2)(b) (b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

895.038(2)(b)1. 1. The person consented to performance of the partial-birth abortion.

895.038(2)(b)2. 2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or 948.09 that was committed by the person.

895.038(3) (3) The relief available under sub. (2) shall include all of the following:

895.038(3)(a) (a) If the abortion was performed in violation of s. 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.

895.038(3)(b) (b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.

895.038(4) (4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.

895.038 History History: 1997 a. 219; 2005 a. 277.

895.038 Annotation A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000).

895.038 Annotation The federal Partial-Birth Abortion Ban Act of 2003 is distinguishable from Stenberg, 530 U.S. 914 (2000), and is constitutional. Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007).

895.038 Annotation Enforcement of s. 940.16 is enjoined under Stenberg, 530 U.S. 914 (2000). Hope Clinic v. Ryan, 249 F.3d 603 (2001).

895.04 895.04 Plaintiff in wrongful death action.

895.04(1) (1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.

895.04(2) (2) If the deceased leaves surviving a spouse or domestic partner under ch. 770 and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse or surviving domestic partner, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50 percent of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse or domestic partner of the deceased; if no spouse or domestic partner survives, to the deceased’s lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased’s brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse or a nonresident alien domestic partner under ch. 770 and minor children shall be entitled to the benefits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse’s or surviving domestic partner’s interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.

895.04(3) (3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment may be entered protecting all defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative.

895.04(4) (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.

895.04(5) (5) If the personal representative brings the action, the personal representative may also recover the reasonable cost of medical expenses, funeral expenses, including the reasonable cost of a cemetery lot and care of the lot, grave marker or other burial monument, coffin, cremation urn, urn vault, outer burial container, or other article intended for the burial of the dead. If a relative brings the action, the relative may recover those expenses on behalf of himself or herself or of any person who has paid or assumed liability for those expenses.

895.04(6) (6) Where the wrongful death of a person creates a cause of action in favor of the decedent’s estate and also a cause of action in favor of a spouse, domestic partner under ch. 770, or relatives as provided in this section, such spouse, domestic partner, or relatives may waive and satisfy the estate’s cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse, domestic partner, or relatives.